Alternatives to Divorce (3:VII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 29, 2020.

A. Annulment

An annulment differs conceptually from a divorce because a divorce terminates a legal status, whereas an annulment is a declaration that the parties’ marital status never properly existed. A declaration of nullity may be obtained for two types of marriages:

• void marriages, which are null and void ab initio (from the outset); and
• voidable marriages, which are valid until a court of competent jurisdiction grants a declaration of nullity (although such a declaration has the effect of invalidating the marriage from its beginning).

The difference between a void and voidable marriage is less important in matrimonial proceedings in British Columbia than it was when the FRA was in effect (see s 95(2) and part 5). The FLA ss 21-22 also do not make any distinction. For purposes other than the FLA, the distinction may still be relevant.

A marriage is void ab initio if:

• either of the parties was, at the time of the marriage, still married to another party;
• one of the parties did not consent to the marriage;
• the parties are related within the bonds of consanguinity (descent from a common ancestor); or
• the formal requirements imposed by provincial statute (such as the BC Marriage Act) are not fulfilled.

Misrepresentation is a ground for annulment only where the misrepresentation leads to a mistake about the identity of the other party or as to the nature of the marriage ceremony.

A voidable marriage is valid until one of the parties to it obtains a declaration of nullity. The declaration must be obtained during the parties’ joint lives, and is not available if the parties are already divorced. In Canada, a marriage may be voidable in the following circumstances:

• either party is impotent or otherwise unable to consummate the marriage (as opposed to unwilling to consummate the marriage, which may constitute cruelty but does not render the marriage voidable (see Juretic v Ruiz, 1999 BCCA 417); or
• a party is under 14 years of age.

These are common law rules.

NOTE: If a marriage is found to be void, this does not affect the property claims that a party might have. Pursuant to s 21 of the FLA, the matrimonial regime still applies in this situation.

B. Judicial Separation

The Court can no longer grant a judicial separation. Judicial separation was formerly used to sever the legal obligations and liabilities between a married couple without terminating the marriage, when a spouse’s religion forbade divorce.

Family Violence (3:VIII): A. Family Law Act

Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act.

Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court.

There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://familylaw.lss.bc.ca/publications/your-protection

Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)).

Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued.

Family Violence (3: VIII): B. Divorce Act

Effective March 1, 2021, the amended Divorce Act will include provisions for identifying family violence and assessing its relevance to family disputes. The following provisions will come into force on that date.

Family violence is conduct by one family member which causes another family member to fear for the safety of themselves or another person. The amended DA characterizes this as threatening or violent behaviour, or a pattern of coercive or controlling behaviour (see s 2(1) of the amended DA for the definition of family violence and a list of conduct which meets this definition). These behaviours need not be criminal offences, nor are they required to meet the threshold for proof in criminal law to qualify as family violence under the updated DA. If a child is exposed to direct or indirect violence, this is considered family violence and possibly child abuse.

Under the amended Divorce Act, family violence will be a factor under consideration in establishing parenting and contact arrangements for children (s 16(3)(j) of the amended DA). Courts may consider family violence grounds to modify or waive notice requirements for changes in residence (s 16.96(3)). Family violence will also be a factor in determining whether family dispute resolution would be inappropriate (s 7.7(2) of the amended DA).

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